Opinion
For Idelfonso Herrera, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.
For Carolyn W Colvin, Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Lynn M Harada, LEAD ATTORNEY, SAUSA - U.S. Attorney's Office, San Francisco, CA.
MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on July 8, 2014, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on August 21, 2014. Plaintiff filed a motion for summary judgment on January 29, 2015. Defendant filed a motion for summary judgment on April 1, 2015. The Court has taken the motions under submission without oral argument. See L.R. 7-15; " Order, " filed July 14, 2014.
BACKGROUND
Plaintiff, a former construction worker, asserts disability since May 1, 2008, based primarily on alleged neck and back problems (Administrative Record (" A.R.") 33-48, 72-73, 153-58, 188). The Administrative Law Judge (" ALJ") found Plaintiff suffers from several severe impairments, but retains the residual functional capacity to perform a limited range of light work (A.R. 13-22). In finding this capacity, the ALJ rejected the contrary opinions of Plaintiff's treating physicians, Dr. Richard Mulvania and Dr. Clifford Berstein (A.R. 21, 1799-1801, 1803-08). The ALJ stated:
The undersigned has given little to some weight to the opinions of these physicians. . . . Dr. Mulvania had not seen the claimant for a year prior to completing the October 2012 assessment. . . . Moreover, as stated above, the opinion as to whether a claimant is disabled under the Social Security Act is an issue reserved for the Commissioner. Opinions from advocates in the form of checklist answers have been considered in the context of the record of the whole. Considering the claimant's longitudinal clinical presentation, type of and response to treatment, daily activities, and objective signs and findings, greater limitations than as found herein are not warranted (A.R. 21).
The ALJ determined that the capacity found to exist would not permit the performance of Plaintiff's past relevant work, but would permit the performance of other jobs existing in significant numbers (A.R. 22-24). Accordingly, the ALJ found Plaintiff not disabled (A.R. 24). The Appeals Council considered additional evidence, but denied review (A.R. 1-4, 1899).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 (" [W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence"; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) (courts may consider evidence presented for the first time to the Appeals Council " to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) (" the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. § § 404.970(b), 416.1470(b).
DISCUSSION
Plaintiff contends, inter alia, the ALJ materially erred with respect to the opinions of the treating physicians. For the reasons discussed herein, the Court agrees. Remand for further administrative proceedings is appropriate.
A treating physician's conclusions " must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (" the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion. . . . This is especially true when the opinion is that of a treating physician") (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to treating physician opinions). Even where the treating physician's opinions are contradicted, " if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 (" The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).
Rejection of an uncontradicted opinion of a treating physician requires a statement of " clear and convincing" reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
In the present case, the ALJ's decision arguably states the following reasons for rejecting both treating physicians' opinions: (1) " the opinion as to whether a claimant is disabled under the Social Security Act is an issue reserved for the Commissioner"; (2) " the context of the record as a whole"; (3) Plaintiff's " longitudinal clinical presentation"; (4) Plaintiff's " type of and response to treatment"; (5) Plaintiff's " daily activities"; and (6) " objective signs and findings" (A.R. 21). The ALJ's decision also states as a reason applicable only to Dr. Mulvania's opinion the ALJ's assertion that " Dr. Mulvania had not seen [Plaintiff] for a year prior to completing the October 2012 assessment" (id.). As a matter of law, these stated reasons do not constitute " specific, legitimate reasons" for rejecting the opinions of the treating physicians.
As to the first enumerated reason, the issue of disability is an issue reserved for the Commissioner in every Social Security disability case. Acknowledging this reservation says nothing specific or legitimate about why the ALJ in this particular case rejected these particular opinions by these particular treating physicians. These physicians' opinions concerned the extent to which Plaintiff's medical problems assertedly reduced Plaintiff's exertional and non-exertional capacities, matters as to which the physicians properly could opine. See Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (doctor properly could assess claimant's " likelihood of being able to sustain full time employment"). Regardless of whether an issue is " reserved to the Commissioner, " the ALJ still must set forth specific, legitimate reasons for rejecting a treating physician's opinion that a claimant is disabled. See Rodriguez v. Bowen, 876 F.2d at 762 n.7 (" We do not draw a distinction between a medical opinion as to a physical condition and a medical opinion on the ultimate issue of disability."); see also Social Security Ruling 96-5p (" adjudicators must always carefully consider medical source opinions about any issue, including opinions about issues that are reserved to the Commissioner").
Enumerated reasons 2 through 6 plainly lack the requisite specificity. See, e.g., McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (" broad and vague" reasons for rejecting treating physician's opinions do not suffice); Embrey v. Bowen, 849 F.2d at 421 (" To say that the medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required. . . ."); Abeloe v. Astrue, 2013 WL 268691, at *12 (E.D. Cal. Jan. 23, 2013) (" The ALJ's statement that the longitudinal history does not support the particular limitations the ALJ chose not to credit is entirely too general and non-specific"); Suppan v. Astrue, 2012 WL 1034938, at *2 (W.D. Wash. Feb. 28, 2012), adopted, 2012 WL 1032550 (W.D. Wash. March 27, 2012) (statement that treating physician's opinions were " inconsistent with the medical record as a whole, and inconsistent with [the claimant's] daily activities" insufficient to support the rejection of the treating physician's opinions).
In the present case, the ALJ did not specify which of Plaintiff's " daily activities" impugned which part or parts of the treating physicians' opinions. According to Plaintiff's testimony, Plaintiff's " daily activities" are extremely limited (A.R. 48). There is no apparent inconsistency between these activities and any part of the treating physicians' opinions.
The import of the ALJ's assertion Dr. Mulvania " had not seen [Plaintiff] for a year prior to completing the October 2012 assessment" is uncertain. Plaintiff claims that his disability began in 2008. Neither the ALJ nor the evidence of record suggests that Plaintiff's condition improved markedly from the fall of 2011 to the fall of 2012. To the extent the ALJ interpreted Dr. Mulvania's opinion as retrospective, a medical opinion may not properly be disregarded solely on the ground that the opinion is retrospective. See Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). In any event, the ALJ's assertion that Dr. Mulvania had not seen Plaintiff in 2012 appears to be erroneous. See A.R. 220 (mentioning Plaintiff saw Dr. Mulvania in January of 2012); A.R. 230 (mentioning Plaintiff saw Dr. Mulvania in July of 2012); A.R. 1892 (mentioning Plaintiff saw Dr. Mulvania in August of 2012).
Of similarly uncertain import is the ALJ's statement that " [o]pinions from advocates in the form of checklist answers have been considered. . . ." Any unexplained assumption by the ALJ that the treating physicians had assumed the role of mere " advocates" for Plaintiff's disability claim, rather than their proper role as physicians rendering honestly held medical opinions, could not justify the rejection of those opinions. See, e.g., Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998) (" In the absence of other evidence to undermine the credibility of a medical report, the purpose for which the report was obtained does not provide a legitimate basis for rejecting it"); Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (" The Secretary [or Commissioner] may not assume that doctors routinely lie in order to help their patients collect disability benefits") (citations and quotations omitted). It is generally true that medical reports submitted in a " summary check-box format without additional explanation are not entitled to significant weight." Bell-Shier v. Astrue, 312 Fed.App'x 45, 48 n.3 (9th Cir. 2009); see Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly rejected psychological " check-off reports that did not contain any explanation of the bases of [the psychologists'] conclusions"). The reports in the present case, however, did include some explanation of the bases for the treating physicians' conclusions. If the ALJ believed he needed more detailed explanation to evaluate conclusions in the reports, the ALJ should have developed the record further. See Sims v. Apfel, 530 U.S. 103, 110-11, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) (" Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits. . . ."); Smolen v. Chater, 80 F.3d at 1288 (" If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record") (citations omitted); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (" The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered").
In an attempt to avoid the conclusion that the ALJ materially erred by failing to state specific, legitimate reasons for rejecting the opinions of the treating physicians, Defendant points out that the ALJ did adopt some of the limitations specified in those opinions. At issue here is whether the ALJ stated the requisite specific, legitimate reasons for discounting or rejecting those aspects of the treating physicians' opinions which conflicted with the ALJ's residual functional capacity assessment. The fact that the ALJ did not discount or reject every aspect of the treating physicians' opinions is irrelevant to this issue.
Defendant also points out that the ALJ gave greater weight to the opinions of the consultative examiner and the non-examining physicians than to the opinions of the treating physicians. Defendant appears to argue that the ALJ's reliance on the contradictory opinions of the consultative examiner and the non-examining physicians satisfies the requirement of stating " specific, legitimate reasons" for rejecting the opinions of the treating physicians. Any such argument lacks merit. The contradiction of a treating physician's opinion by another physician's opinion triggers rather than satisfies the requirement of stating " specific, legitimate reasons." See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 F.3d at 631-33; Lester v. Chater, 81 F.3d at 830-31. The Ninth Circuit's decision in Saelee v. Chater, cited by Defendant, is not to the contrary. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996), cert. denied, 519 U.S. 1113, 117 S.Ct. 953, 136 L.Ed.2d 840 (1997). In Saelee v. Chater, the ALJ did state specific, legitimate reasons for preferring other physicians' opinions over those of the treating physician (Dr. Aleman). In Saelee v. Chater, the ALJ stated that Dr. Aleman's report " varied from Dr. Aleman's own treatment notes, and was worded ambiguously in an apparent attempt to assist Saelee in obtaining social security benefits. . . . The ALJ [also] pointed out that Dr. Aleman himself stated that he was unable to establish any organic basis for most of Saelee's complaints." Id. at 522-23.
Finally, Defendant directs the Court's attention to certain specific evidence in the record that might serve to flesh out some of the bare generalities stated by the ALJ as reasons for rejecting the opinions of the treating physicians. Defendant cannot properly suggest specifics the ALJ failed to state expressly as his reasons for rejecting the treating physicians' opinions. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court " cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision").
Remand is appropriate because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative proceedings is the proper remedy " in all but the rarest cases"); Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical opinion evidence only where, inter alia, " the record has been fully developed and further administrative proceedings would serve no useful purpose"); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038, 121 S.Ct. 628, 148 L.Ed.2d 537 (2000) (remand for further proceedings rather than for the immediate payment of benefits is appropriate where there are " sufficient unanswered questions in the record"). Here, it is not clear that the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if the rejected medical opinions were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010); see also Garcia v. Commissioner, 768 F.3d 925, 932 (9th Cir. 2014).
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with the directive for the immediate payment of benefits would not be appropriate at this time. " [E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled." See Garrison v. Colvin, 759 F.3d at 1021.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
IT IS HEREBY ADJUDGED that the decision of the Commissioner of the Social Security Administration is reversed in part and the matter is remanded for further administrative action consistent with the Opinion filed concurrently herewith.